FEDERAL COURT OF AUSTRALIA

MZZES v Minister for Immigration and Border Protection [2015] FCA 397

THE COURT ORDERS THAT:

1.    The appeal be allowed.

2.    The orders made by the Federal Circuit Court Judge on 17 April 2014 be set aside.

3.    In lieu of those orders, the following orders be made:

(a)    a writ certiorari issue, directed to the second respondent, removing into the Court its decision, made on 5 November 2012 affirming the decision of a delegate of the first respondent not to grant a protection visa to the appellant, for the purpose of quashing that decision;

(b)    the decision of the second respondent, made on 5 November 2012, affirming the decision of a delegate of the first respondent not to grant the appellant a protection visa, be quashed;

(c)    a writ of mandamus issue, directed to the second respondent, requiring it to hear and determine the application of the appellant for review of the decision of the delegate of the first respondent refusing to grant him a protection visa.

4.    The first respondent pay the appellant's costs of the appeal.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

1    The appellant appeals against the orders made by the Federal Circuit Court delivered on 17 April 2014.

2    The Federal Circuit Court dismissed an application for a review of a decision of the Refugee Review Tribunal (the Tribunal) made on 5 November 2012. The Tribunal affirmed the decision of a delegate of the first respondent, the Minister for Immigration and Border Protection, not to grant the appellant a protection visa.

3    The appellant is a citizen of Sri Lanka of Tamil ethnicity. He made a number of claims in support of his application for a visa. Only three of the claims remain relevant for the purposes of this appeal. Each of those claims gave rise to a ground of appeal.

THE PEOPLE SMUGGLER GROUND

4    One of those claims was that whilst in detention the appellant told Australian authorities the identity of a people smuggler also in detention, who had supervised the voyage of asylum seekers to Australia. The Appellant claimed to fear harm as a member of a particular social group, namely, people who had informed the Australian authorities about people smugglers.

5    It is common ground that such a claim was not considered by the Tribunal. The Federal Circuit Court determined that the Tribunal did not need to consider the claim because the appellant had abandoned it. The first ground of appeal raises the question whether the Federal Circuit Court was correct to determine that the appellant had abandoned the people-smuggler claim.

6    Mr Hill, who appeared as counsel for the Minister, correctly accepted that if the appellant had not abandoned the people-smuggler claim then the Tribunal fell into jurisdictional error by failing to consider it.

The Relevant Facts

7    On 18 and 21 March 2012, the appellant was interviewed by an officer of the Department of Immigration and Citizenship (the Department) (the entry interview). The officer completed an Entry Interview Record. That record is a form which has a heading including the words “Australian Government” and “Department of Immigration and Citizenship” placed under the Australian coat of arms. The form has pre-printed questions for an interviewer to ask, and then blank spaces for the interviewee’s responses.

8    In his answers the appellant identified [Person X] as a supervisor of the five or six people who drove the boat which brought him to Australia. [Person X] was in the Scherger Immigration Detention Centre with the appellant. The appellant responded “yes” to the question whether there was anyone in the Centre of concern to him and who had been threatening him. He provided the following details, at Question 10(f):

[Person X] spoke to [Person Y] [Boat ID XXXXXX] on either [A date] or [B date] and said that he would harm his family and his parents and that if he tried to go back to Sri Lanka they would know about it at the airport. [Person Y] told his Case Manager about this. [Person X] told me the same information on [C date]. I said to [Person Y] that I would remain quiet about this and told my Case Manager about this on [D date]. [Person X] is a Sinhalese and he is here with his son – name is [Person Z] and I think his boat ID is [Boat ID YYYYYY]. The son did not say anything. They have the power to do anything as the Army and Police in Sri Lanka are all Sinhalese and they can go to any country. [Person X] has also threatened many others and they have put in complaints.

9    When asked at the end of the interview whether there was anything the officer had not asked the appellant which he would like to say, the appellant said, at Question 19:

… I would like to have on record that the captain of the boat [Person X] [Boat ID ZZZZZZ] has made threats stating that he and his people will create problems and harm my family, so the danger for me has increased further. [Person X] is part of the people smugglers and it is no problem for him to kill somebody.

10    On 28 May 2012, the appellant made a protection visa application. His claims were set out in a statement accompanying the application. The statement made no reference to the people-smuggler claim.

11    On 5 June 2012, the appellant was interviewed by an officer of the Department as delegate of the Minister (the delegate interview). A migration agent acting on behalf of the appellant was also present. The delegate asked the appellant questions about various elements of the claims. Towards the end of the interview the appellant referred to another claim made in the entry interview and in the statement accompanying his application concerning a dispute with the Sri Lankan government over land and the appellant said to the delegate “you have not asked anything about it”. The delegate responded:

I just want to assure you whatever you have stated in both of your statements I will take into consideration when I make my decision. So if we haven’t discussed it today, it doesn’t mean that I will not take it into my consideration. [Delegate Interview Transcript p37]

12    In response the appellant’s migration agent said to the delegate:

My client has asked me just to make some points. He actually feels that the substance of both the statement and the entry interview covers his claims. [Delegate Interview Transcript p37]

13    On 12 July 2012, the delegate refused the appellant’s application for a protection visa. No reference was made in the delegate’s decision to the people-smuggler claim.

14    On 19 July 2012, the appellant lodged an application for review to the Tribunal. A different migration agent now represented the appellant and sent a written submission dated 27 August 2012 to the Tribunal. The submission made no reference to the people-smuggler claim.

15    On 31 August 2012, the appellant attended a hearing before the Tribunal. His migration agent was also present. Shortly after the commencement of the hearing the Tribunal member said:

Now, I have the file of the department of immigration containing your original application. I’ve also had the opportunity of listening to the recording of the interview you had with the officer of the department who made the decision on your application. What I propose to do today is to ask you some questions and you will have the opportunity to mention anything to me which you haven’t already mentioned to the department.

[Emphasis added.] [RRT Hearing Transcript p3]

16    The Tribunal member then asked the appellant questions about a number of the claims. He did not ask any questions about the people-smuggler claim.

17    Then, at the end of the questioning, the following exchange took place between the Tribunal member and the migration agent:

Now, Ms Pablo, was there anything you thought we hadn’t covered?

No, all aspects of the claims have been covered.

[RRT Hearing Transcript p31]

The Federal Circuit Court Judgment

18    The Federal Circuit Court observed that the appellant did not raise the people-smuggler claim in the delegate interview or in the hearing before the Tribunal. The Federal Circuit Court also referred to the reply given by the appellant’s migration agent when asked by the Tribunal whether anything had not been covered in the hearing that “all aspects of the claims have been covered”. Further, there was no mention in the written submissions of the people-smuggler claim. Then, the Federal Circuit Court judge said that when the delegate said “I just want to assure you whatever you have stated in both of your statements I will take into consideration when I make my decision” the delegate did not say that he would take into account what the appellant said in his entry interview. The Federal Circuit Court concluded from these factors that the people-smuggler claim had been abandoned.

19    The Federal Circuit Court judge distinguished the present case from MZYQZ v Minister for Immigration and Citizenship [2012] FCA 948 (MZYQZ). In that case Dodds-Streeton J held that the merits reviewer had made a jurisdictional error by failing to consider a claim that the appellant feared persecution (forced recruitment by the Taliban) as a young Hazara man without parents. The claim was raised by the appellant orally before the refugee status assessment (RSA) officer and referred to in an oral summary of the appellant’s case made by the appellant’s representative before the officer. The RSA officer did not refer to the claim in his reasons. Then, the appellant’s advisors filed a written submission in support of a merits review application. That submission did not refer to the forced recruitment claim. However, it did state:

We refer to and rely on all previous oral and written evidence and submissions previously provided by or on behalf of the applicant and now wish to make the following further submissions in support of his review application.

20    Then, at the commencement of the merits review, the reviewer said:

I have all the information previously provided by you and your advisor or referred to in the earlier decision and that will be taken into consideration whether or not we specifically cover it again today.

21    Justice Dodds-Streeton said:

58    In my opinion, in the circumstances of this case, the conscription claim was not abandoned before the IMR [Independent Merits Reviewer]. The IMR not only failed to challenge the appellant’s express assertion that he relied on previous written and oral evidence and submissions, but reinforced it by his unqualified opening statement that he had “all the information previously provided by you and your adviser or referred to in the earlier decision” and would take it into consideration, whether or not it was specifically covered.

…

60    While it is thus unlikely that the IMR intended, by his opening statement, to undertake to consider claims make orally only in the course of the RSA interview, the statement, according to its literal, ordinary meaning, in my view extended to such claims. Particularly, given the appellant’s express reliance on previous oral and written evidence and submissions, there is no basis to construe the statement as applicable only to written material. Further, there was no evidence that the appellant or his migration agent were aware that the IMR did not have any record of the RSA interview available or before him.

22    The Federal Circuit Court judge distinguished the present case because the factual context was different. He said at [56]:

That difference was the reassurance and affirmation given to the appellant in MZYQZ that all previous claims would be fully taken into consideration by the decision-maker and also by the fact that the appellant “expressly adopted all previous oral and written evidence and submissions”. There was an assurance given that all previously provided information would be considered. In this case, the Applicant did not state to the Tribunal that he relied upon all previously provided information; nor did the Tribunal state it would consider all previously provided information, including claims that were not even made before the Delegate. Whereas in MZYQZ the claim was made orally before the Delegate.

CONSIDERATION

23    Mr Hill argued on behalf of the Minister that, at least by the time the written submissions were filed in the Tribunal, the appellant had abandoned the people-smuggler claim.

24    This was because there was no mention of the claim in the submissions. There had been no mention of the claim in the delegate interview or any complaint that the delegate had failed to refer to the claim in his reasons. Then, the appellant made no mention of the claim in the hearing before the Tribunal, and his representative replied when asked that all aspects of the claim had been covered in the hearing.

25    Mr Hill contended that a relevant factor in considering whether the claim had been abandoned was that the appellant was professionally represented both at the delegate interview and the hearing before the Tribunal. Where a person is professionally represented and a claim is not expressly articulated it is more difficult to infer that the claim was advanced: SZRPA v Minister for Immigration [2012] FCA 962 at [10].

26    Mr Hill rightly acknowledged that whilst the representation of the appellant was a factor to be taken into account, the significance of the factor will depend on an assessment of all the circumstances. In the present case, for instance, one of the circumstances was that the appellant did not have the same representative at all stages. Further, it is significant that the people-smuggler claim was made orally at the entry interview. That is to say, it was made by the appellant at an early opportunity in the context of a personal interview with the appellant rather than with the intervention of a professional representative.

27    As in MZYQZ, a central consideration is the statement made by the Tribunal of the material on which it intended to rely. For convenience, that statement is repeated now as follows:

Now, I have the file of the department of immigration containing your original application. I’ve also had the opportunity of listening to the recording of the interview you had with the officer of the department who made the decision on your application. What I propose to do today is to ask you some questions and you will have the opportunity to mention anything to me which you haven’t already mentioned to the department.

28     Mr Hill submitted that this statement did not refer to the entry interview but only to the record of the delegate interview.

29    It may well be that the Tribunal did not have the entry interview before it. That is likely because there is no mention of it in the summary of the material before the Tribunal which is set out in the decision of the Tribunal. Further, in every other respect the decision of the Tribunal is comprehensive and detailed. If the Tribunal had been aware of the substance of the entry interview it is likely that details of the entry interview would have been recorded in the section of the decision which set out the material before the Tribunal.

30    However, the last sentence of the Tribunal’s statement, in particular, conveyed the meaning that there was no need for the appellant to mention anything which had previously been mentioned to the department. That is to say, the statements made at the delegate interview and the entry interview would be taken into account by the Tribunal. Although the text of the Tribunal’s statement is not the same as in MZYQZ, the sense of the statement is the same.

31    Then, Mr Hill relied on the response of the appellant’s representative that “all aspects of the claim have been covered”. He urged that this response confined the claims to those which had been discussed in the hearing before the Tribunal. In the context it is more likely that the representative was accepting that there was nothing more to add in respect of the issues which the Tribunal had raised in the hearing.

32    One difference between this case and MZYQZ, is that the written submissions of the appellant to the Tribunal did not expressly rely on the previous oral evidence given by the appellant. But this is not a critical distinction. The position expressed by the Tribunal at the hearing amounted to an assurance that the people-smuggler claim would be considered by the Tribunal. By that reference the Tribunal acknowledged that the people-smuggler claim was extant.

33    Consequently, the Tribunal fell into jurisdictional error by failing to consider the people-smuggler claim. It follows that there will be orders requiring the Tribunal to consider the appellant’s application according to law.

The Land Ownership Ground

34    In his entry interview the appellant made a claim based on his and his family’s protests against the government as follows, at Question 3:

My Father-in-law has been involved in some protests against the Army, because they had confiscated land belonging to my Father-in-law which was written to my wife. My Father-in-law complained to the Grama Sevaka (GS) – the village head man, as well as to the Government Agent as well to the police and various other groups. I am not sure exactly when the protest took place but it was sometime in 2011. Other people were also involved in the protest with my Father-in-law. It is difficult for them to conduct a protest march as the area is controlled by the Army and the Karuna group. My Father-in-law and others who have had land confiscated are planning a visible demonstration against the Government. A Sinhalese Buddhist priest from the nearby village Rigitannal, Batticaloa District has said to my Uncle and the others that they should make every effort to reclaim the land.

35    In his statement in support of his visa application the appellant referred to the claim as follows:

8.    Also in 1990 the Army occupied property owned by my wife’s family and remain in occupation of this land to the present time.

9.    In 2000 when I was married I received this land as a dowry from my wife’s family, which remains in my wife’s name. This occupation by the Army has caused tensions between me and the Army and there have been a number of incidents in my life over the recent years that involve the Army, that make me fear the army harming my life.

10.    As a minority Indian Tamil I have no one in the wider community to support my rights to retrieve my land.

36    It can be seen that the claim made in the visa application was not specifically directed to protesting against the government. This limited form of claim was raised by the appellant before the delegate and set out in the delegate’s decision. It was referred to in the migration agent’s submissions made to the Tribunal. It was recorded in the Tribunal’s reasons and dealt with by the Tribunal as follows:

75.    I noted that the applicant had also referred to the fact that in 1990 in Sri Lankan Army had occupied property owned by his wife’s family. The applicant confirmed that he claimed that when he had married in 2000 he had received this land as dowry from his wife’s family but that this land remained in his wife’s name. However he then said that they had changed it to both their names. I put to the applicant that the fact that the Sri Lankan Government had not returned this land to him and his wife did not in itself amount to persecution for the purposes of the Refugees Convention.

76.    I put to him that, as I had explained at the beginning of the hearing, the law in Australia said that persecution had to involve ‘serious harm’ and that ‘serious harm’ meant things like a threat to his life or liberty, significant physical harassment or something that threatened his capacity to earn a living in Sri Lanka. I put to him that the fact that the Sri Lankan Government had not returned this land to him and his wife did not appear to amount to persecution involving ‘serious harm’. The applicant said that he had been tortured before and there was no guarantee that he would not be tortured again. He said that he had been beaten and that he still had this fear.

37    The Federal Circuit Court determined that the appellant had abandoned any claim to fear persecution as a member of a particular social group being people opposed to the Sri Lankan government because they had land taken from them by that government.

38    The Federal Circuit Court reached this conclusion both with respect to this claim and with respect to the people-smuggler claim by the same reasoning. The error which was explained earlier in these reasons in respect of the people-smuggler claim applies equally to the land ownership claim. Consequently, the Federal Circuit Court should not have determined that the land ownership claim in the way it was articulated in the entry interview had been abandoned.

The THREAT TO KILL GROUND

39    The appellant claimed that he had been threatened with death by a police officer with whose wife he had had an affair. He claimed the threat to kill was cruel or inhumane treatment entitling the appellant to complementary protection (s 5(1) defining significant harm in s 36(2A) of the Migration Act 1958 (Cth)).

40    The Tribunal did not accept that there were substantial grounds for believing that the policeman would carry out the threats and consequently the Tribunal rejected the claim for complementary protection on this ground.

41    The appellant argued before the Federal Circuit Court that his fear arose from the making of the threat. The appellant’s case was not, he submitted, only that he feared that the policeman would carry out the threat.

42    The Federal Circuit Court rejected this argument and said at [29]:

It is clear, in my view, that what the Applicant feared was that the policeman would make good his threat, and that is how his claim was put. It did not demand, in the circumstances of this case, for the Tribunal to entertain an enquiry as to whether the threat per se constituted significant harm. It is accepted that there are circumstances where a threat, in itself, constitutes significant harm, but only in particular circumstances could a threat be caught by the statutory description. In this case, the question of whether the threat per se constituted significant harm does not arise, in my view, in the context of the hearing, or in the context of the claims made. The Applicant’s claim was never along the line that he feared that should he be returned to Sri Lanka, he would be threatened again and that such a threat would be torture, or the cause of significant harm.

43    On appeal, the appellant contended that the Federal Circuit Court erred because the Tribunal failed to address the case put by the appellant.

44    The transcript of the hearing before the Tribunal demonstrates that the fear about which the appellant complained was that the policeman would carry out the threat. The Federal Circuit Court did not err as was contended by the appellant. The threat to kill ground should not be accepted.

CONCLUSION

45    It follows from these reasons that the decision of the Tribunal must be set aside and the matter remitted for hearing according to law, and the first respondent pay the appellant’s costs of the appeal.

Associate:

Dated:    29 April 2015